Any doubt that _Bowers v. Hardwick_, 478 U.S. 186 (1986), would continue to wreak havoc in the 21st century was dispelled in a new decision by the U.S. Court of Appeals for the 11th Circuit, _Williams v. Pryor_, 2000 WL 1513756 (Oct. 12). The court rejected a facial challenge to Alabama's statutory ban on the sale of devices that facilitate genital stimulation, because such devices could be used for constitutionally unprotected sexual pleasure by "homosexuals." The court reversed -- except as applied to four ostensibly heterosexual women -- District Judge C. Lynwood Smith, Jr.'s decision striking down the statute on its face as not rationally related to a legitimate government interest. In an opinion by Circuit Judge Black, the court interpreted _Bowers_ as permitting states to criminalize not only "homosexual sodomy" (the issue according to the Supreme Court's opinion in _Bowers_), but any activity, including masturbation, that might give gay men or lesbians sexual pleasure. In sharp contrast to this expansive reading of _Bowers_, the court dismissed _Romer v. Evans_, 517 U.S. 620 (1996), as having "no bearing" on the issue before it.

Two years ago, Alabama's legislature made it a crime to distribute for profit "any device designed or marketed as useful primarily for stimulation of human genital organs." A first offense is punishable by a fine and up to a year in prison or -- no kidding -- hard labor. Vendors of sexual devices and four women who use such devices joined together to challenge the statute. Plaintiffs alleged that the statute bore no rational relationship to a legitimate government interest and that it infringed -- both facially and as applied -- a fundamental constitutional right to sexual privacy.

Disposing of the first claim meant identifying a legitimate interest and finding a rational connection between the statute and that interest. Judge Black made short work of the first task, finding a legitimate state interest in the "safeguarding of public morality." (Specifically, the state had claimed the statute would discourage "autonomous sex.") The district court had relied on _Romer v. Evans_ in finding the state's goal illegitimate. But in the appeals court's view, _Romer_ dealt only with the unconstitutionality of "imposing an inability to obtain the protection of antidiscrimination laws." This, according to the court, had "no bearing" on the case before it.

The court then -- in perhaps the weakest part of its opinion -- disposed of claims that the statute, because it ignored the health-related uses of genital-stimulating devices (which, the court conceded, are prescribed in sexual and relationship counseling), is not rationally related to the public-morality purpose. It also rejected the district court's finding that the government's interest in reducing "sexual-stimulation . . . unrelated to marriage, procreation or familial relationships" is not rationally served by a statute that also affects possibilities for genital stimulation within marriage. According to Judge Black, "The criminal proscription on the distribution of sexual devices certainly is a rational means for eliminating commerce in the devices, which itself is a rational means for making the acquisition and use of the devices more difficult." Thus, the court explained (both tautologicallly and redundantly), "the statute is not constitutionally irrational under rational basis scrutiny because it is rationally related to the State's legitimate power to protect its view of public morality." (Protecting its view of public morality is about the only thing the court accomplished!) In other words, the state's assertion that "autonomous sex" is immoral can justify any law expected to decrease the frequency (or perhaps the effectiveness) of such behavior.

Black then turned to a separate claim that the statute infringed a fundamental right to sexual privacy (both facially and as applied). The court characterized a series of Supreme Court right-to-privacy decisions, including _Griswold_, _Casey_, and _Roe v. Wade_, as dealing with the right to make decisions about procreation, not sexual conduct. "Extending the constitutional right to privacy to include a broad fundamental right to all sexual autonomy," wrote Black, "is directly precluded by ." In other words, "In light of _Bowers_, there would be no violation of any fundamental constitutional right to the extent application of Alabama's statute infringed upon the sexual activity of homosexuals." (By referring to "the sexual activity of homosexuals," rather than "homosexual activity" or "homosexual sodomy," the court apparently meant to include the aforementioned "autonomous sex." That phrase, incidentally, has no apparent precedent in American case law.) In an ironic footnote, the court conceded that 15 years ago it had recognized exactly such a right, in _Hardwick v. Bowers_ (as the case was called at the circuit court level), only to be slapped down by the Supreme Court. (However, in a construction used selectively to distance itself from past holdings it now regrets, the court attributed its earlier decision not to "this court" but to "a panel of this Court.")

Finally, the court turned to the as applied challenge, where it offered heterosexual genital stimulators some hope. The court made reference to the presumed sexual orientation of the four individual plaintiffs, noting that "Betty Faye Haggermaker and Alice Jean Cope are married women who use sexual devices with their husbands. Sherry Taylor-Williams and Jane Doe began using sexual devices in marital intimacy but both are now single." In the court's view, "the as-applied challenge raised by the plaintiffs, married or unmarried, implicate interests in sexual privacy different from those rejected in _Bowers_." (Could the court somehow believe that masturbation is gay when performed by some people, and straight when performed by others?) In any event, the court noted that application of the law to the four female users had been insufficiently explored below (the case was "tried" on the basis of stipulated facts).

It remanded to the district court for further consideration of whether the women had a fundamental right to use sexual devices. The upshot: To buy sexual devices in Alabama, women may now have to prove their heterosexuality, perhaps by marrying the ex-husbands of Doe or Taylor-Williams. Even that possibility, however, could be foreclosed: To find in the women's favor, the district court will have to determine the right in question to be "objectively, deeply rooted in this Nation's history and tradition." What evidence would convince the court that the right to use dildos and vibrators is deeply rooted it didn't say, but there should be no shortage of experts willing to testify on the point. _Fred A. Bernstein_

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